January 09, 2013 Articles

Changes to Oklahoma's Prelien Notice Requirements

The state legislature has made several statutory changes that are intended to clarify and simplify the requirements for prelien notices

by Gerald G. Stamper

The Oklahoma legislature has made several statutory changes that are intended to clarify and simplify the requirements for prelien notices. Delivery of a valid prelien notice is a condition precedent to the enforceability of a mechanic's or materialman's lien.  The applicable statutes are codified in OKLA. STAT. tit. 42, §§ 141-154 (2011).

Owner-Occupied Dwellings
 

All of the previous requirements for special forms, service, and acknowledgment of notices of  the possibility of a mechanic's or materialman's lien on property then occupied as a dwelling by the owner of the property have been repealed. A single form of prelien notice is sufficient for any commercial or residential property, with a few exceptions, such as oil and gas wells, mining property, and railroad rights-of-way.

Time for Giving a Prelien Notice

A prime contractor is not required to give a prelien notice, and a prelien notice is not required if the aggregate claim is less than $10,000. Neither is a notice required for a single family or multifamily project of four or fewer dwelling units, none of which is occupied by an owner.  Other claimants are required to send a prelien notice not later than 75 days after the last date of supply of material, service, labor, or equipment in which the claimant may be entitled to lien rights.

The time of giving the prelien notice does not affect the time within which a statement of lien must be filed in the office of the county clerk of the county in which the property is located.  An original (prime) contractor must file a lien statement within four months after the last date of supply of material, service, labor, or equipment and all other claimants must file a lien statement within 90 days after the last date of supply.

Only one prelien notice is required for a project, including retainage. A valid notice protects the lien rights for any service, material, labor, or equipment subsequently furnished during the course of a construction project.

Contents of a Prelien Notice

The prelien notice must be in writing and contain a statement that it is a prelien notice.  It must also contain the following:

    a. complete name, address and telephone number of the claimant or its representative
    b. date when material, labor, service, or equipment was supplied
    c. description of the material, service, labor or equipment
    d. name and last-known address of the person who requested the material, service, labor or equipment
    e. address, legal description, or identifiable location of the property to which the service, labor, equipment or material was supplied
    f. statement of the dollar amount of the service, material, labor, or equipment furnished or to be furnished
    g. signature of the claimant or claimant's representative

The claimant must send the notice to the original contractor and an owner of the property. The claimant may request in writing that the original contractor provide the name and last-known address of an owner of the property.  If the original contractor does not provide the information within five days, the claimant is not required to send the prelien notice to an owner.

Affidavit of Compliance

At the time of filing the lien statement, the claimant must furnish to the county clerk an affidavit verifying compliance with the statutory prelien notice requirements. Falsification of the affidavit is a misdemeanor punishable by thirty days' imprisonment and a $5,000 fine.

Failure to comply with any of the requirement will render that part of the claim for which no proper notice was given invalid and unenforceable.

Keywords: construction litigation, prelien notice, requirements, mechanic's or materialman's lien, Oklahoma

Gerald G. Stamper is an of counsel attorney at Barrow & Grimm, P.C. in Tulsa, Oklahoma.

Copyright © 2013, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).